5. The first six applicants were born in 1926, 1936, 1969, 1963, 1972 and 1965 respectively and live in Malta. The second applicant introduced his application in his capacity as sole heir of the late Carmelo Zammit, while the third, fourth, fifth and sixth applicants are acting before the Court in their capacity as heirs of the late John Parnis England. The seventh applicant, W.J. Parnis England Limited, is a company registered in Valletta, Malta.
6.  On 3 August 1960 the applicants and/or their ancestors acquired the right of perpetual emphyteusis (a contract granting use of a “tenement”, that is, a house, apartment or other building, for a stated yearly rent or ground rent to be paid in money or in kind) over a piece of land, located within the limits of two Maltese cities, Birkirkara and Msida. This land, known as “Tal-Hriereb”, measured approximately 23,606 square metres (sq.m).
7.  Under the contract of emphyteusis, the applicants and/or their predecessors undertook to pay the annual ground rent and to spend 7,500 British pounds (GBP, approximately 11,137 euros (EUR)) on improvements to the land. They were given the right to redeem the direct dominium (the right of the dominus on the tenement let out on emphyteusis) at the capitalisation rate of five per cent, which amounted to 8,669.80 Maltese liras (MLT - approximately EUR 20,807).
8.  On 1 August 1961 the Governor of Malta declared that part of the land in question, measuring approximately 7,531 sq.m, was required for a public purpose. The acquisition of the land was to be made by outright purchase. The applicants and/or their predecessors held under title of emphyteusis most of the land affected by the expropriation (approximately 7,066 sq.m). The amount of ground rent payable on the area of land expropriated amounted to MTL 260.12 (approximately EUR 624) per year. In accordance with domestic law they lost possession of the said land fourteen days from the date of publication of the notice of the intention to expropriate the property.
9.  In a Notice to Treat of 16 May 1964 and 20 May 1964 respectively the Commissioner of Lands offered the applicants in their capacity as empyhteutae, jointly with the persons having the direct dominium (hereinafter, the “dominus”), GBP 631 (approximately EUR 1,515) for the land expropriated. The dominus and the applicants refused this offer.
10. On 1 June 1964 they jointly lodged replies to the Notice to Treat rejecting the amount offered and claiming that the compensation should be calculated on the basis of an annual ground rent of twelve shillings and six pence (approximately EUR 0.92) per 4,3911 sq.m (one square cane) less three shillings and four pence (approximately EUR 0.24) per 4.3911 sq.m which was the original ground rent to which it had been subjected. They also claimed that the directum dominium alone was worth approximately GBP 8,738 (approximately EUR 12,974).
11.  On 6 November 1964 the case was brought before the Land Arbitration Board (hereafter the “LAB”) to establish the amount of the compensation due.
12.  The first sitting was held on 9 December 1964. Within the following year seven adjournments took place for various reasons, inter alia: to allow a lawyer to be instructed; the illness of the applicants’ lawyer (on 24 February 1965, adjourned to 31 March 1965); the ordering of an on‑site inspection; giving the parties time to submit replies; the LAB taking time to consider the oral submissions made; and because the merits of the case were related to another pending case. An on-site inspection was also held.
13.  On 15 December 1965 the case was adjourned sine die to await the outcome of case X, pending before the Civil Court. The proceedings could have been resumed on request by any of the parties. According to the Government, the decision to adjourn was given with the agreement of all the parties. The applicants contest this. Judgment in case X was delivered by the Civil Court on 21 October 1967 and reversed on appeal on 28 October 1968. This decision was upheld on 10 February 1971 by the Judicial Committee of the Privy Council.
14.   Three and a half years later, on 30 September 1974, one of the applicants asked for the proceedings to be resumed. On 7 October 1974 the case was adjourned to 18 November 1974. The case was then adjourned five times (18 November, 9 December and 20 December 1974, 13 January and 24 February 1975), on three occasions because the parties had not been notified and twice by order of the LAB.
15.  According to the applicants and/or the documents of the proceedings, no reason was given for three of the adjournments (7 October and 9 December 1974 and 24 February 1975). According to the Government, the six adjournments were made for the purposes of notifying all the applicants that the case had been resumed.
16.  After notification of all the parties, the LAB started dealing with the merits on 3 March 1975, on which date the case was again adjourned in order to fix a date for an on-site inspection because of the withdrawal of one of the architects.
17.  On 7 April 1975 a date was set for the on-site inspection and the case was adjourned. On 25 April 1975 the on-site inspection was held. No representatives of the applicants were present.
18.  On 12 May 1975 the case was adjourned for no apparent reason to 26 May 1975, on which date a request was made to apportion the compensation and the case was adjourned again to 23 June 1975 as the applicants’ representative was not present. On 23 June 1975 the case was adjourned again as one of the applicants had not been notified. On 6 October 1975 the case remained adjourned.
19.  On 17 November 1975 the last applicant to be notified confirmed notification and did not object to the on-site inspection, which had already taken place. The case was then adjourned another three times for no apparent reason. On 26 January 1976 the LAB put questions to the parties and heard their replies and declared that all the land of the emphyteutae had been expropriated. It adjourned the case to 1 March 1976, on which date the case was adjourned again as the architects required more time to estimate the apportionment of the emphyteusis. The case was then adjourned another eight times: three times for judgment; once because the architects required still more time; three times by order of the LAB; and once due to other commitments of one of the members of the LAB.
20.  By a decision of 3 February 1978, the LAB established that the compensation due amounted to MLT 1,161 (approximately EUR 2,786) and fixed 15 February 1978 as the date for the publication of the deed of transfer. It further assigned a notary to publish the deed and an advocate to appear on behalf of any absent party. The LAB did not indicate how this amount was to be shared among the interested parties.
21.  On 5 December 1978 the State made a request for the correction of a mistake in the LAB’s decision. On an unspecified date the Commissioner of Lands asked the LAB to establish how the compensation was to be divided between the dominus and the emphyteutae. A similar request was made by the interested parties.
22.  On 29 December 1978, after having seen the application for rectification and replies thereto, the LAB scheduled a hearing for 2 March 1979. The case was then adjourned seventeen times, once for lack of notifications, once on the request of the applicants, three times because of the unavailability of the LAB members or other problems of the LAB and the rest for unknown reasons. The applicants’ representatives did not appear at, at least, seven hearings between 7 May 1979 and 12 January 1981.
23.  On 21 January 1981, Mr Carmelo Zammit died. It cannot be established whether the second applicant replaced his late father in these proceedings as the relevant documentation could not be found in the domestic court’s archives.
24.  On 22 September 1981 the LAB gave its decision. It acknowledged that the decision of 3 February 1978 had been based on a wrong measurement of the expropriated land and ordered the correction of this mistake. However, the amount of compensation remained unchanged. The LAB rejected the Commissioner of Land’s request to indicate the respective shares of the dominus and the emphyteutae, reserving the right of the parties to have this matter determined by the ordinary courts.
25.  The dominus and the emphyteutae disagreed on the amount of compensation due to each. Consequently, their rights were not transferred to the Government. The emphyteutae were still bound under the contract of emphyteusis to pay the dominus the ground rent, amounting to MLT 260.12 (approximately EUR 595) per year.
26.  On 31 October 1994, the applicants and/or their predecessors instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. They claimed that the requisition of the “Tal-Hriereb” land, coupled with the lack of payment of compensation, amounted to a violation of Article 1 of Protocol No. 1. Moreover, they argued that, contrary to Article 6 § 1 of the Convention, their case had not been heard by the LAB “within a reasonable time”.
27.  By a judgment of 5 October 1998, the Civil Court rejected these claims.
28.  It observed that even though part of the “Tal-Hriereb” land had been declared to have been required for a public purpose in 1961, the expropriation had not yet been executed since the deed of transfer had not been published and payment of the compensation had not been made.
29.  In the Civil Court’s view, the law aimed at establishing a fair compensation for the taking of the property, which should reflect the market value of the expropriated land. This sum was due to all interested parties. Under the Convention, it was irrelevant whether one or more parties were entitled to the sum in issue and whether the right originated from the same title or not. In any case, the calculation of compensation had to be based on objective criteria. It then fell to the various interested parties to establish how the compensation should be divided. In the present case, the applicants and/or their predecessors had not made use of the ordinary remedy provided by the law in order to fix the apportionment of the compensation. The fact that the division had not been made was therefore imputable to them.
30.  The Civil Court further noted that during the constitutional proceedings the Commissioner of Lands had refunded the applicants the amount of ground rent that had been paid by them.
31.  As far as the “reasonable time” requirement was concerned, the Civil Court observed that, even though no compensation had been paid for almost forty years after the taking of the land, the LAB’s decision had been delivered in 1981. Thus, the applicants’ omission to avail themselves of the ordinary remedy provided by law in order to obtain the division of the sum due for compensation had caused a delay of almost twenty years, which could not be imputed to the authorities.
32.  On an unspecified date the applicants appealed both claims to the Constitutional Court.
33.  They observed, in particular, that the Civil Court had failed to take into consideration the fact that the refunding of the ground rent by the Commissioner of Lands produced a sum which was much higher than the compensation awarded by the LAB. They also reiterated their argument that the compensation in issue had not been apportioned among the interested parties.
34.  On 13 June 2004 Mr John Parnis England died, and the proceedings, were continued in his own name as no application to replace him was lodged by his heirs.
35.  By a judgment of 24 October 2005, the Constitutional Court rejected the applicants’ appeal and confirmed the Civil Court’s decision under both heads.
36.  In particular, it recalled that the Commissioner of Lands was obliged to pay the real and actual market value of the land, and not a sum calculated on the basis of non-objective criteria. The fact that the ground rent on the land was high did not necessarily mean that the compensation awarded by the LAB was not just.
37.  It was true that the law did not prohibit the apportionment of the compensation; however, this did not mean that there was an obligation to effect such an apportionment in each case where there was more than one interested party. An omission to do so was therefore not in violation of the Civil Code or of any other law. In any case, it was open to the applicants to request the Civil Court to divide the compensation. The fact that this division had not taken place was therefore imputable to the applicants, who had failed to institute the proceedings provided by the law.